Mallette v. Canada (Attorney General), 2004 FC 151

Date: 20040130

Docket: T-1260-02

Citation: 2004 FC 151

BETWEEN:

STÉPHANE MALLETTE

Applicant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER

HARRINGTON J.

INTRODUCTION

[1]        This is an application for judicial review by the applicant pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, regarding a decision dated June 19, 2002, by which the Inmate Grievance Committee (the committee) of Correctional Service Canada (CSC) dismissed his grievance. That grievance concerned the dismissal of his application for reconsideration of his security level and involuntary transfer to the Drummond Institution.

FACTS

[2]        Stéphane Mallette is currently an inmate at the Drummond Institution, a medium security penitentiary.

[3]        Since 1998, he has been serving a sentence of 8 years and 8 days for offences of robbery, disguising with intent, forcible confinement, conspiracy to commit robbery with a firearm, breaking and entering and conspiracy to commit breaking and entering.

[4]        After obtaining a minimum security rating when he was imprisoned at the La Macaza Institution, he was transferred to the Montée St-François (MSF) Minimum Security Institution on October 31, 2000.

[5]        While he was at the MSF Institution he showed certain relevant progress in terms of his correctional plan and consequently was able to benefit from temporary absences to encourage his return to society. In view of his conduct at that time, he also earned work releases.

[6]        However, on September 28, 2001, his exterior placement was suspended because, following a urine test, he admitted taking drugs. The applicant explained his misconduct by a difficult situation he was going through at the time with his ex-spouse. The leave authorizations were also cancelled as a consequence.

[7]        On November 16, 2001, Mr. Mallette was placed in administrative segregation because preventive security had obtained information that he was suspected of planning to escape. The prison authorities placed him in segregation.

[8]        On November 22, 2001, pursuant to paragraph 21(2)(a) of the Corrections and Conditional Release Regulations (the Regulations), the applicant met with the Administrative Segregation Committee, where it was explained to him that the preventive security department had received information from four different sources, coded and considered trustworthy, linking him to very active participation in drug trafficking in the Institution. Further, according to this information on the eve of his placement in administrative segregation Mr. Mallette sought to obtain money from other inmates with a view to escaping.

[9]        On December 5, 2001, Correctional Plan No. 7 Follow-Up was produced and discussed with the applicant on December 10, 2001. This Correctional Plan Follow-Up contained a summary of security information reports linking the applicant to the bringing of drugs into the institution and their sale and to the fact that he intended to escape. According to this Correctional Plan Follow-Up, Mr. Mallette was told by his case management team and by the preventive security officer (PSO) to cease his activities.

[10]      On December 6, 2001, an Assessment for Decision was produced regarding Mr. Mallette's security rating and involuntary transfer. The content of that evaluation was disclosed to Mr. Mallette on December 12, 2001. In that Assessment for Decision, the applicant's case management team recommended his security rating be raised to medium and he be involuntarily transferred to a medium security institution.

[11]      On December 12, 2001, pursuant to section 29 of the Corrections and Conditional Release Act (the CCRA, or the Act), he received a Notice of Involuntary Transfer Recommendation in which he was told that he could make comments on the recommendations regarding his security rating and transfer. He was further told that his comments would be taken into account at the time of the final recommendation and in the decision-making process.

[12]      Accordingly, on several occasions in December 2001, he sent the warden of the MSF Institution comments opposing the proposed security rating and transfer. In particular, he mentioned the presence of persons hostile to him in certain institutions.

[13]      At the same time, pursuant to subsection 21(2) and section 22 of the Regulations, the Administrative Segregation Committee ruled on the 5th, 30th and 60th days that keeping the applicant in involuntary administrative segregation was justified until the transfer process was complete.

[14]      On December 24, 2001, the transfer of the applicant to the Drummond Institution, a medium security penitentiary, was approved by the warden of the MSF Institution and on January 23, 2002, the applicant was transferred to the Drummond Institution.

[15]      He filed a grievance at the second level of the grievance procedure against the decision setting his security rating at medium and against his involuntary transfer to the Drummond Institution.

[16]      On April 11, 2002, after an exhaustive study of the case, the regional deputy commissioner concluded that apart from sending the applicant's new case management team letters which his current [TRANSLATION] "girlfriend" had sent to the Senior Analyst, Inmates Affairs, for action considered necessary, no further steps were required at the regional level.

[17]      On May 20, 2002, Mr. Mallette challenged this decision at the third level of the grievance procedure. On June 19, 2002, his grievance was rejected and it was stated that on June 4, 2002, a new assessment of his security rating had confirmed that it would remain at the medium level.

[18]      On June 4, 2002, when the applicant's security rating was reviewed, it was maintained at the medium level. This rating was assigned to the applicant not only in light of the events that occurred at the MSF but also in view of his present situation. Thus, his case management team mentioned in the Assessment for Decision the following, inter alia: [TRANSLATION] "We also noted in the interview that the subject was having great difficulty controlling his impulsiveness and we feel he will have to increase his credibility".

[19]      Additionally, in a memorandum dated May 6, 2002, the applicant's new case management team at the Drummond Institution said it agreed with the increase in security rating made at the MSF Institution.

[20]      Mr. Mallette filed the application for judicial review at bar against the decision at the third level of the grievance procedure regarding an increase in his security rating and his penitentiary placement.

POINTS AT ISSUE

[21]      The only point at issue is whether the decision by the third level of the grievance procedure on June 19, 2002, is one that would warrant this Court's intervention.

APPLICANT'S ARGUMENTS

[22]      Mr. Mallette submitted that the Commission's decision was wrong since CSC did not provide sufficient information [to] him when reassessing his security rating from minimum to medium and the transfer that resulted.

[23]      Specifically, he submitted that the information in support of the decision to raise the security rating did not meet the tests laid down in the Commissioner's directives and standard operating procedures and that the decision was made contrary to the elementary rules of fundamental justice, since it relied on unverifiable information against which he had no means of presenting a full and complete defence.

[24]      In other words, he submitted that CSC was required to give him more information on the allegations of drug trafficking and intent to escape so he could submit a complete defence, and maintained that the information in the decision was too vague to enable him to present a complete and intelligent defence. In this regard, it seems advisable to set out part of the applicant's memorandum here:

[TRANSLATION]

42. . . . Did this source provide details on the proposed escape, giving information on means, time and place? Was the drug trafficking a plan or an observed fact? What drugs were in question? Bringing drugs into the institution is certainly a very serious act: what were the circumstances surrounding that act? What were the quantities involved? Was an organized network mentioned? Was the applicant supposed to be acting on his own account? Since he was not going outside, how could he obtain the said drugs? It is known that the search of his visitor Ms. Proulx (when Ms. Comeau was expected) proved negative and no document mentioned any suspicion concerning her. In that case, who else brought him these drugs? NOTHING - NO INFORMATION - was provided to the applicant giving even a minimal justification of the decision to segregate him and transfer him . . .

[25]      Accordingly, he considered that this breach of the rule of natural justice deprived him of his constitutional rights protected by section 7 of the Canadian Charter of Rights and Freedoms.

RESPONDENT'S ARGUMENTS

[26]      The respondent relied on the assignment of a new security rating to Mr. Mallette on June 4, 2002, as a basis for arguing that the application at bar is pointless. The respondent noted that in making that reassessment the applicant's case management team at the Drummond Institution did not rely just on the events that occurred at the MSF when they recommended that his medium rating be maintained. It also noted itself in the interview that the subject was still having great difficulty controlling his impulsiveness, and mentioned he would have to increase his credibility. Consequently, it was not until after there had been an exhaustive analysis of all the applicable criteria that it recommended a medium security rating.

[27]      Accordingly, the respondent submitted that in view of this new security rating the application for judicial review at bar has for all practical purposes become moot. The respondent argued that if Mr. Mallette was dissatisfied with this new rating assigned to him on June 4, 2002, he should have challenged it at the proper time.

[28]      Further, the respondent submitted that the quantity and quality of the information shared with Mr. Mallette when his security rating was raised was entirely sufficient and consistent with the rules of natural justice applicable in the circumstances, and consequently the decision at the third level of the grievance procedure was correct.

[29]      The respondent maintained, relying on abundant precedent, that the standard of judicial review applicable to the grievance procedure established under the CCRA is that of the patently unreasonable decision, when as here the question is one of fact.

[30]      Additionally, the respondent submitted that unless the impugned decision is shown to be a flagrant and clear contravention of the rules of natural justice applicable in the circumstances, this Court's intervention will not be necessary.

APPLICABLE PROVISIONS

Corrections and Conditional Release Act, 1992, c. 20, Loi sur le système correctionnel et la mise en liberté sous condition, S.C. 1992, c. 20

Corrections and Conditional Release Regulations, SOR/92-620,Règlement sur le système correctionnel et la mise en liberté sous condition, DORS/92-620.

ANALYSIS

[31]      Before beginning the analysis, it is very important to note that the application for judicial review before this Court relates only to the committee's June 19, 2002 decision and does not in any way concern the decision to place the inmate in administrative segregation.

Applicable standard of review

[32]      Since this is a judicial review proceeding the standard of review applicable to the impugned decision must first be established.

[33]      In Légère v. Canada (1998), 133 F.T.R. 77 (F.C.T.D.), Pinard J. held that despite the fact that the decision to order the transfer of an inmate or to deny his application is a discretionary one, requiring the decision-maker to observe procedural fairness, the Court when hearing an application for judicial review of that decision cannot substitute its personal opinion for that of the administrative authority which made the decision. The Court cited [1982] 2 S.C.R. 2">Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2, at 7, to explain the approach taken by the Court in judicial review of discretionary decisions:

It is . . . a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility.

[34]      In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Supreme Court, reiterating the "pragmatic and functional" approach taken in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, stated the four factors that should be taken into account in determining the applicable standard of review in the case of a discretionary decision. Those factors are the following: (1) the presence or absence of a privative clause; (2) the expertise of the decision-maker; (3) the purpose of the disputed provision and of the Act as a whole; (4) the nature of the questions to be decided and their impact on the conclusions of law and fact to be drawn.

[35]      Although the Act contains no privative clause that would place decisions of the committee at the third level beyond the scope of judicial review, the Court must still exercise a high degree of restraint regarding questions affecting prison administration, in view of the expertise which the committee has in that area. The purpose of the Act, and in particular of section 24, was stated by Lemieux J. in Tehrankari v. Canada (Correctional Service), [2000] F.C.J. No. 495:

41. . . . In Parliament's view, the quality of the information prescribed by section 24 leads to better decisions about an offender's incarceration and . . . leads to the achievement of the purposes of the Act. Section 24 of the Act, however, is not concerned with the inferences or assessments drawn by the Service from file information. Section 24 cannot be used to second guess decisions by the CSC provided the information base on which those conclusions are drawn comply with this provision. Section 24 deals with primary facts . . .

. . . . .

44. . . . I would apply a correctness standard if the question involved is the proper interpretation of section 24 of the Act; however, I would apply the standard of reasonableness simpliciter if the question involved is either the application of proper legal principles to the facts or whether the refusal decision to correct information on the offender's file was proper. The patently unreasonable standard applies to pure findings of fact.

Natural justice . . . scope of reasons for a decision

[36]      The decision whether to transfer an inmate is a purely administrative decision: see in particular Faulkner v. Canada (Solicitor General) et al. (1992), 62 F.T.R. 19, at 24. CSC must nevertheless observe the rules of procedural fairness and natural justice in arriving at such a decision: Camphaug v. Canada (1990), 34 F.T.R. 165.

[37]      Natural justice or the duty to act fairly requires that inmates have a right to know the gist of allegations made against them so they can respond intelligently to such allegations.

[38]      In Demaria v. Regional Classification Board, [1987] 1 F.C. 74 (F.C.A.) (Demaria), the Federal Court of Appeal had occasion to consider the scope of reasons regarded as insufficient in an involuntary transfer of an inmate. Per Hugessen J.A., the Court said this at 77-78:

There is, of course, no doubt that the authorities were entitled to protect confidential sources of information. A penitentiary is not a choir school and, if informers were involved (the record here does not reveal whether they were or not), it is important that they not be put at risk. But even if that were the case it should always be possible to give the substance of the information while protecting the identity of the informant. The burden is always on the authorities to demonstrate that they have withheld only such information as is strictly necessary for that purpose . . . In the final analysis, the test must be not whether there exist good grounds for withholding information but rather whether enough information has been revealed to allow the person concerned to answer the case against him.

[39]      This rule of precedent has also been embodied by Parliament in section 27 of the Act. The first paragraph of section 27 of the Act provides that the applicant is entitled to receive, within a reasonable period before the decision to transfer is to be taken, relevant information leading to the decision or a summary thereof. Subsection 3 of that section provides for the non-disclosure of certain information when the Commissioner has reasonable grounds to believe that disclosure of the information would jeopardize the safety of a person or the security of the penitentiary.

[40]      It is essential to bear in mind that procedural fairness is a concept with a variable configuration. As Pinard J. noted in Desjardins v. National Parole Board et al. (1989), 29 F.T.R. 38, at 41: "the rules of natural justice and of fairness are common law rules that are flexible in the sense that they have to be applied to the circumstances of the particular case".

[41]      This flexibility has led the courts on several occasions, as the situations involve penitentiaries, to limit their intervention to cases of flagrant injustice. For example, in Kelly v. Canada (1993), 56 F.T.R. 166 (F.C.T.D.), Denault J. held that as the disputed discretionary decision was administrative in nature the Court should confine itself to reviewing the legality of the decision and accordingly should not get into a thoroughgoing review of the merits of the case, as the applicant wished. The Court explained the limits of its power of intervention by citing, at 169, the statements made by Addy J. in Cline v. Reynett (T-894-81, March 18, 1981, not reported - F.C.T.D.):

There is no "right" for a prisoner to be in one prison rather than another and the decision to transfer from a medium to a maximum security prison or vice versa is basically and essentially an administrative decision which must not be interfered with by the courts failing clear and unequivocal evidence that the decision was taken arbitrarily and in bad faith or in a capricious manner and in addition that the decision is quite unfair and works a serious injustice on the prisoner.

[42]      Further, it is also important to consider the nature of the decision in the internal setting of the prison. As Marceau J.A. noted in Gallant v. Canada, [1989] 3 F.C. 329 (Gallant), all administrative decisions affecting inmates in prison institutions should not be dealt with in the same way. A decision on transfer is administrative in nature, taken to maintain good order in the penitentiary and ensure protection for the public. As such, procedural fairness does not require that the applicant have as many details as in the case of a disciplinary charge. At paragraph 28 of his judgment Marceau J.A. said the following:

In such a case [a case of transfer], there would be no basis for requiring that the inmate be given as many particulars of all the wrong doings of which he may be suspected. Indeed, in the former case, what has to be verified is the very commission of the offence and the person involved should be given the fullest opportunity to convince of his innocence; in the latter case, it is merely the reasonableness and the seriousness of the belief on which the decision would be based and the participation of the person involved has to be rendered meaningful for that but nothing more. In the situation we are dealing with here, guilt was not what had to be confirmed, it was whether the information received from six different sources was sufficient to raise a valid concern and warrant the transfer.

Application of law to facts of case at bar

[43]      In order to decide the point at issue, therefore, it should be determined whether the third level decision contravened the rules of natural justice as developed by the courts and section 27 of the Act. To use the words of Nadon J. in Cartier v. Canada (Attorney General), [1998] F.C.J. No. 1211, it must be established whether the CSC gave the applicant "all the information 'to be considered in' the taking of the decision or a summary of that information".

[44]      Analysis of the record leads the Court to conclude that in the case at bar CSC provided the applicant with sufficient information to allow him to understand why CSC wanted to transfer him. The information he was given enabled the applicant to make such comments as he considered appropriate.

[45]      On November 16, 2001, the very evening of his placement in administrative segregation, Mr. Mallette was informed of the reasons which led the CSC authorities to place him in segregation. Preventive security had received information that the applicant was suspected of escaping.

[46]      Then, on November 22, 2001, Mr. Mallette was met by the Segregation Committee, which explained to him that there was information with preventive security from four different sources, coded and considered trustworthy, which linked him to very active participation in drug trafficking in the institution. This information further disclosed that the applicant regularly used drugs with fellow inmates and that he was bringing drugs in through visits in association with a

fellow inmate and reselling them. The information also indicated that on the eve of his placement in administrative segregation the applicant had tried to get money from fellow inmates with a view to escaping. Reference was also made to problems with his former spouse and a dispute with a fellow inmate with whom a certain degree of tension existed.

[47]      In the weeks that followed, in particular when assessing the decision on his security rating, the Correctional Service also gave Mr. Mallette all the information the Correctional Service would be taking into account in assessing his security rating.

[48]      In this regard, in Normand v. Canada (National Parole Board), [1996] F.C.J. No. 1628 (F.C.T.D.), Marc Noël J. said:

Like the basic structure and function of the Parole Board, the language of the Board's enabling statutes makes it clear that the Board lacks the ability or jurisdiction to exclude relevant evidence. The language of the Corrections and Conditional Release Act confers on the Board a broad inclusionary mandate. Not only is it not bound to apply the traditional rules of evidence, but it is required to take into account "all available information that is relevant to a case". No mention is made of any power to apply exclusionary rules of evidence. Indeed, such a provision would conflict with its duty to consider "all available information that is relevant".

Section 141 of the CCRA provides that the relevant information does not have to be communicated in full: a summary is sufficient. This provision has been regularly applied by the decisions of this Court: see in particular Hudon v. Canada (Attorney General), [2001] F.C.J. No. 1836.

[49]      In the case at bar, there was no breach of the duty to disclose relevant information before the hearing was held, as Mr. Mallette was in possession of a copy of the CSC report and so was well aware of what he had to answer.

[50]      Mr. Mallette was therefore fully aware of the information which led the Correctional Service to place him in administrative segregation and then reassess his security rating upward. It was not necessary in the case at bar for the applicant to have more details in order to be able to present his point of view on his security rating and transfer, and in any case he did this on several occasions, when he submitted his comments to CSC.

[51]      It should be borne in mind that this is not a decision by which a penalty or punishment is imposed following an offence, which would have required more details, as held in Demaria, to enable the applicant to defend himself against a specific allegation of an offence. Rather, this is a transfer made necessary for the smooth running of the institution. In the case at bar, as in Gallant, the disclosure of particulars of confidential information obtained regarding the escape plan or drug trafficking would put the safety of the other persons involved at risk.

[52]      As the decision is one involving fact, and there is no shadow of an indication that it is unreasonable, and a fortiori patently unreasonable, I do not see how this Court could justify intervening.

[53]      In view of the foregoing, there is no need to consider the respondent's argument that the application at bar is moot and pointless.

CONCLUSION

[54]      For all these reasons, I dismiss this application for judicial review. The applicant did not submit any evidence on the basis of which it could be concluded that the committee acted contrary to the rules of procedural fairness or that it made an unreasonable decision, still less a patently unreasonable one.

Montréal, Quebec

January 30, 2004

Certified true translation

Suzanne M. Gauthier, C Tr, LLL

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                                   T-1260-02

STYLE OF CAUSE:                                                   STÉPHANE MALLETTE

v.

THE ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                                             MONTRÉAL, QUEBEC

DATE OF HEARING:                                               JANUARY 13, 2004

REASONS FOR ORDER BY:                                  HARRINGTON J.

DATED:                                                                      JANUARY 30, 2004

APPEARANCES:

Sylvie Bordelais                                                             FOR THE APPLICANT

Eric Lafrenière                                                               FOR THE RESPONDENT

SOLICITORS OF RECORD:

Sylvie Bordelais                                                             FOR THE APPLICANT

Montréal, Quebec

Morris Rosenberg                                                          FOR THE RESPONDENT

Deputy Attorney General of Canada

Montréal, Quebec